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Tuesday, November 15, 2011

Execution Without Appeals--A Death Penalty That Gives Us What We Say We Want From It

Two favorable effects of the death penalty that make it seem desirable are that it is less expensive to execute than to imprison, and that it capital punishments deters capital crime better than life imprisonment. Both of these are compromised by the long appeals process, which is more expensive than housing a criminal for life, and also dilutes the deterrent effect, since a murderer probably won't be executed until long after they were initially convicted. Some people say that there is a class of "open and shut cases" which need not be appealed. Thus, we can get a swift execution without the lengthy appeals process.

To get what this suggestion is looking for you have to implement a special threshold of evidence where there really is no possible doubt, and no chance for a future exoneration. While we can, in a retail sort of way, mention cases where this level of evidence was achieved, the problem is that our system has to identify certain characteristics of cases that are so open and shut that we can't imagine an exoneration. The criteria for a conviction is evidence beyond a reasonable doubt, but even there we have had exonerations. In the case of Casey Anthony, one theory was that the jury was reluctant to convict because they would then have had to consider a death sentence, and since certain kinds of evidence were lacking, they didn't want to take that risk. And "beyond reasonable doubt" is a threshold of evidence doesn't mean that "beyond possible doubt." I don't think the development of an "open and shut case" category where the appeals process could be circumented is workable, although I understand why it would be appealing to many people.

There was the famous arson case in Texas---guy's name was Willingham, where the fire science of the time proved beyond a reasonable doubt that he had killed his family by arson. Only, the fire science of today contradicts that, but, unfortunately, he was executed and wasn't around to be released.

The question is whether it is the extent we are going to allow the risk of executing an innocent person. I think that that is a horrible side effect of our system. While the system is run by human beings, I think it will remain fallible. If there is a death penalty, then you can't eliminate the possibility of it being used on an innocent person.

To really have a death penalty that does for us what most death penalty advocates would get from it, what you have to do is accept a higher risk than we already have of executing innocent people. (You can't make an omelette without breaking some eggs). What would really help with the deterrent effect would be getting rid of innocent until proven guilty. That's what they do in some countries. In the People's Republic of China, they would execute the prime suspect within a few weeks, and they did get a real deterrent effect there.

23 comments:

I have thought about this for a while. Since the death of innocents (DoI) is always a concern in implementing the death penalty (DP), and not just a fast tracked version of it, I have thought that there should be universal criteria for putting the DP on the table. Note, such criteria wouldn't necessitate its use (although, I suppose criteria for that could be made up as well).

First, though, I want to address the DoI. On the face of it, it's quite a weak case imho against the DP. We still go to war even if 1 or more DoI shall occur. We still allow planes to take off, people to drive cars, people to use guns, and so on. Unless there is some principle that separates the DP from these instances of DoI, then I see no case against the DP. Second, the huge majority of exoneration occurred with the advent of DNA. Now we have DNA evidence in defense and prosecution, and I'd like to see what the "new" exoneration rate is. Third, we throw people in jail for life who are innocent, as well (or, again, at least we did before better forms of forensics). Imho, this would in many ways be worse than death, especially if I was innocent.

Ok, so what about criteria to allow the DP to be on the table? Why not something simple, like there had to be two independent eyewitnesses (or a video source that ID's the subject clearly) and also had to be DNA evidence linking the offender to the crime. Even with a good imagination, I have a hard time coming up with a way to convict someone innocent that way.

But why even have a death penalty? I'm not speaking philosophically here, or as a Catholic, or from a "pro-life" stance, just wondering what's the purpose of it? I can't see one.

Does it deter anyone from heinous crimes? I doubt it; such crimes are still being committed today, when we have capital punishment already. Does it save money? No, every objective study shows it costs the state more to put someone to death than it does to lock him up for life. Does it prevent repeat offenses? Well, yes. But it's not the only, or even the best, way to accomplish that (see next paragraph for why the death penalty may actually allow for more repeat offenses). Rational parole procedures would accomplish that goal. Is it healthy for society? Most emphatically no! Legal, sanctioned, state killing is not healthy for a society. And if you think otherwise, that in itself is evidence of the institution's baleful influence on otherwise decent people.

As promised, why capital punishment may actually increase repeat offenses: I would wager that there have been many cases of the guilty being let off because one or more jurors did not want to see a defendant face the death penalty. I personally know of one juror who voted "innocent" in a case he believed the person guilty (of murder, no less!), because of that possibility. (This individual was a strict pro-life Catholic.)

I agree with B. Prokop in everything he said, and I would only add one thing. The other "positive" reason for the death penalty, and I would guess the prime reason - the elephant in the room of these discussions - is that it allows society to satisfy a psychological need for vengeance. To me, that is not a good reason, and when we take it off the table, the other reasons for the death penalty pretty much fall apart.

Many arguments for the death penalty rest on a false notion of the nature of human persons. Proponents falsely assume that the criminal had free will, and could have done otherwise than to commit her crime. Since she freely chose to commit a crime, she deserves the retribution, goes the thinking.

But of course she could not have done otherwise.

Retributive punishment is idiotic.

On the other hand, if the argument is that the death penalty is a deterrent, then that argument is based on an accurate understanding of human persons.

But you cannot use an argument from deterrence if you think humans have free will.

I agree that both deterence and retribution are inadequate reasons for the death penalty. They are utilitarian justifications which falls short of a solid basis for ethics.

A stronger reason in favor of the death penalty is the value of human life. This seems counter-intuitive that taking a life values human life. But if someone takes a life (and this life had inestimable value),what other response is sufficient?

Are you suggesting then that all murderers should get the death penalty? Because right now, only a very small fraction of them do.

In 2007 (the latest year I found statistics for), there were 18,632 homicides in the U.S. There were 42 executions in that year in the U.S. Are you really suggesting that we should have executed 18,632 people?

There was the famous arson case in Texas---guy's name was Willingham, where the fire science of the time proved beyond a reasonable doubt that he had killed his family by arson. Only, the fire science of today contradicts that, but, unfortunately, he was executed and wasn't around to be released.

Is the argument in the OP coming down to the fact that while science is useful, we still can't trust it on certain important matters?

The argument is simply that we probably can't find a special subset of capital cases where we can determine that the possibility of executing the innocent has been avoided. So, that risk will always be with us. At the same time, as the death penalty is practiced in the US today, we do execute people, but they are given many years of appeals before the execution takes place. That seems illogical, because the litigation is expensive, and because the impact of execution is blunted, because no one faces immanent execution even if they are sentenced to death. I think the last execution we had in Arizona was on a case where the crime was committed in 1988, 23 years ago! How in the world is that going to deter anybody? So, either we should just abolish the death penalty entirely, (my choice), or we have to find ways of making death immanent for people who commit capital crimes. But what that means is that we INCREASE the risk of executing an innocent person. There is a sense in which our actual practice of the death penalty in America concedes the point about executing the innocent. Hence, we have to choose between learning to stop worrying and love the needle, or we have to give up on the death penalty entirely.

That seems illogical, because the litigation is expensive, and because the impact of execution is blunted, because no one faces immanent execution even if they are sentenced to death. I think the last execution we had in Arizona was on a case where the crime was committed in 1988, 23 years ago! How in the world is that going to deter anybody?

I think this is where things get particularly heady. First, I'm not sure that this 'immanent' thing matters as much as you say it does. Second, even if it did, it's not clear that 23 years is necessary to be extremely thorough in a death penalty case anyway - in which case your words here could be taken for speeding up the process, and looking at why it takes as long as it does. Either way, I don't think "immanence" matters as much as you're suggesting it does.

Though I admittedly do like the idea of an argument against the death penalty on the grounds of an intrinsic unreliability of science to have conclusive say on certain matters of importance. That's why I zeroed in on the "fire science of the time" move. You could multiply it with other examples too: that the science of the time also backed eugenics, or racist conclusions, or who knows what else, and thus there's a certain class of acts which the certainty of science can't reasonably be expected to vault over high enough to merit trust in it.

That's just the beginnings of a possible argument, anyway, and I doubt that's what you were going for originally.

Of course the death penalty deters. A review of the debate.Dudley Sharp

1) Anti death penalty folks say that the burden of proof is on those who say that the death penalty deters. Untrue. It is a rational truism that all potential negative outcomes deter some - there is no exception. It is the burden of death penalty opponents to prove that the death penalty, the most severe of criminal sanctions, is the only prospect of a negative outcome that deters none. They cannot.

2) There have been 27 recent studies finding for death penalty deterrence. A few of those have been criticized. The criticism has, itself been rebutted and/or the criticism doesn't negate no. 1 or nos. 3-10.

3) No deterrence study finds that the death penalty deters none. They cannot. Anti death penalty columnists Eric Zorn of the Chicago Tribune states, "No one argues that the death penaly deters none." Yes, some do, But Zorn is correct, the issue is not "Does the death penalty deter?". It does. The only issue is to what degree.

4) About 99% of those murderers who are subject to the death penalty do everything they can to receive a lesser sentence, in pre trial, plea bargains, trial, in appeals and in clemency/commutation proceedings. Life is preferred over death. Death is feared more than life. No surprise. Would a more rational group, those who choose not to murder, also share in that overwhelming fear of death and be deterred by the prospects of execution? Of course.

5) There are a number of known cases of individual deterrence, those potential murderers who have stated that they were prevented from committing murder because of their fear of the death penalty. Individual deterrence exists.

7) Even the dean of anti death penalty academics, Hugo Adam Bedau, agrees that the death penalty deters .. . but he doesn't believe it deters more than a life sentence. Nos. 4-6 and 10 provide anecdotal and rational evidence that the death penalty is a greater deterrent than a life sentence. In addition, the 27 studies finding for deterrence, find that the death penalty is an enhanced deterrent over a life sentence.

8) All criminal sanctions deter. If you doubt that, what do you think would happen if we ended all criminal sanctions? No rational person has any doubt. Some would have us, irrationally, believe that the most severe sanction, execution, is the only sanction which doesn't deter.

9) If we execute and there is no deterrence, we have justly punished a murderer and have prevented that murderer from ever harming/murdering, again. If we execute and there is deterrence, we have those benefits, plus we have spared more innocent lives. If we don't execute and there is deterrence, we have spared murderers at the cost of more innocent deaths.

10) Overwhelmingly, people prefer life over death and fear death more than life.

"If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

I've never seen the point of the van den Haag argument that the death penalty must be a better deterrent because, once caught, these criminals plead for imprisonment as opposed to the death penalty. What they think after they have been caught has little relevance to what they might have been thinking about the penalty for their actions before they actually commit the crime, and expect to get away with it. No one commits a crime thinking they will be caught. The expect not to be punished at all, since they expect to avoid detection. So, the penalty will have less relevance than it will once they've already been caught and are deciding what to plead for. This strikes me as armchair psychology.

Once again -- and a Lewis scholar, of all people, has no excuse to avoid this -- no criminal punishment, including capital punishment, can justly be about anything other than justice. If "we" want capital punishment to be about "deterrence", then “we” don't want it to be about justice, and we won’t be overly concerned about injustice.

Furthermore – and, again, you have no excuse for avoiding this – *all* normative law is backed up by “the death penalty”, possibly explicitly, but always at least implicitly. Therefore, *all* arguments against capital punishment, per se, are also arguments against the very existence of laws, and therefore against the very existence of human society.

Lewis doesn't say retribution only. He says that mercy, if it exists, has to be placed within a context wherein justice is the first consideration.

Second, while I think the power to punish us is one government has the right to, and I think the government has the right to kill people who pose a clear and present danger to its citizens, I don't think this can fairly be applied to killing someone who is safely held within a jail cell and is effectively prevented from killing anyone. Manson, a monster if there ever was one, no longer kills people, because I take it, he is prevented from doing so. And the need to kill active threats isn't based on justice. For example, let's say it is the case (as I understand it was not) that Charles Whitman, the Texas Tower shooter from, I think, 1966, was really caused to do what he did by a brain tumor, and was not responsible for his actions. If that were true, the SWAT team still had an obligation to kill him if necessary to protect the people at the University, even though they would not have been executing justice.

You’re doing the “liberal" "retribution dance”, and frankly, it’s both unbecoming to see and beneath you personally: you really ought to leave that particular faux pas de deux to a hard-core "liberal", like a socialist.

VR: “Lewis doesn't say retribution only. He says that mercy, if it exists, has to be placed within a context wherein justice is the first consideration.”

Mercy is the setting aside of the full weight of justice; the “liberal” perversion of mercy is the denial of justice itself, so as to get right to the “mercy”. The “liberal” perversion of mercy is the very essence of injustice - how can anyone honestly be surprised at the increase of crime and injustice as “liberals” have increased their domination of our post-Christian societies?

There can be no mercy if there is not first justice - right judgment and condemnation - and, thus, there is always a certain tension between the two, since mercy *just is* the setting aside of the full condemnation of justice.

Only he who has the moral authority to declare the condemnatory judgment of justice has the ability, much less the authority, to deliver mercy. That is, while one might beg one’s mugger for “mercy”, one is actually begging for pity, and one is actually begging him not to treat one as unjustly as one fears he will.

VR: “Second, while I think the power to punish us is one government has the right to, and I think the government has the right to kill people who pose a clear and present danger to its citizens, …”

It’s not a “right” of government, it’s a duty, and not just of government, but of all of us: a government which will not use deadly force against the enemies of its subjects is morally illegitimate … and, in the end, must and will resort to violence against its subjects so as to hold onto its power over their lives.

VR: “… I don't think this can fairly be applied to killing someone who is safely held within a jail cell and is effectively prevented from killing anyone. Manson, a monster if there ever was one, no longer kills people, because I take it, he is prevented from doing so.”

First, Manson and Sirhan Sirhan and such-like are special cases: they will never be released, and we all know this; for they are in that special category of “life imprisonment” for which “life” actually does mean life. Unlike the thug who viciously torture-murders a nobody like you or me, and who will be released in a mere handful of years, these murderers made waves in polite “liberal” circles, and thus can never be deemed to have "paid their debt to society".

Second, and a Lewis scholar ought to understand this, the fact that Manson will never be released, the reason that he will never be released, is exactly the sort of dehumanizing and responsibility-denying mind-set that Lewis was criticizing. The proximate reason that Manson will never be released is not because he was sentenced to “life imprisonment”, and certainly is not because he deserves to be executed (with “life imprisonment” being a morally acceptable alternative), but because he will always be deemed “not cured”. Manson’s “life imprisonment” isn’t about justice - and necessarily it thus delivers injustice, to his victims and even to him.

Third, and most importantly, your argument implies, and seems implicitly to assume, that mercy is deserved. But, this is an irrational contradiction of what both justice and mercy are; this is the nullification of both. To assert that someone deserves mercy is to illogically assert that the justice by which he stands condemned is unjust. That is, this isn’t just the claim that a specific instance of judicial proceeding was conducted and rendered unjustly; rather, this is the irrational and self-defeating assertion that justice itself is unjust.

VR: “And the need to kill active threats isn't based on justice. For example, let's say it is the case (as I understand it was not) that Charles Whitman, the Texas Tower shooter from, I think, 1966, was really caused to do what he did by a brain tumor, and was not responsible for his actions. If that were true, the SWAT team still had an obligation to kill him if necessary to protect the people at the University, even though they would not have been executing justice.”

This is false, and you ought to know that it is false.

The primary moral duty of any government is to protect the lives and property of its subjects, and having failing that (as must inevitably happen from time to time), to exact just retribution against those who have done them injustice. To refuse to do so - as “liberalism” demands - is the epitome of injustice.

Justice does not come only, or even primarily, from the “criminal justice system”, such that only the stamp of approval from a Black Robe renders an action of some government flunky an act of justice.

Moreover, the modern-day (i.e. redesigned and controlled by “liberals”) “criminal justice system” isn’t about justice at all. Rather, it is about the system, it is about the life sinecures of the bureaucrats who run and control it: the judges and lawyers on both sides of the system.

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About Me

I am the author of C. S. Lewis's Dangerous Idea: In Defense of the Argument from Reason, published by Inter-Varsity Press. I received a Ph.D in philosophy from the University of Illinois at Urbana-Champaign in 1989.